I don’t think Ginsburg’s dissent was that embarassing

Steve Sailer & Half Sigma were happy that Ricci won, but thought it still disheartening that four members of the court signed on to Ginsburg’s dissent. The only Supreme Court decision I’ve read before was D.C vs Heller (and though conflicted regarding the result, I still viewed some arguments for the city as embarrassing). There’s a saying that hard cases make for bad law, and in this case the law was already bad enough that Ginsburg didn’t need to go out on a limb. If you’ve really got a dog in the fight a case may look easy and then the only explanation for a judge ruling the other way must be bad faith. A difference of one vote on the court not only gave Ricci a victory, but reduced the potential liability of a municipality in New Haven’s position, thereby undermining both their legal defense and incentive for the action they had taken. While the Supreme Court is to blame in Griggs for introducing liability for disparate outcomes from equal treatment with no evidence of intentional discrimination, it is still the case that Congress amended Title VII to explicitly prohibit disparate outcomes later. It is also case that the law makes some allowances for compromising equal treatment to avoid liability for disparate outcomes. Only Scalia’s concurrence (not joined by any other justice) broached the subject that the law itself may be contradictory and require changes down the road. This sort of thing is why John Hasnas wrote The Myth of the Rule of Law (see part II in particular) and to a significant extent why Bryan Caplan considers law a shockingly phony discipline.

Note that I am only saying that the dissent by those four justices is defensible. That does not constitute a defense of Sotomayor, as not even the dissenting judges agreed with her. Nor am I defending the actions of Destefano and other New Haven politicos.

For those interested in my own opinion on the case, it will take me a while because I’m so far out there. I don’t see why the Supreme Court should have any jurisdiction over a dispute between the New Haven government and some of its employees. The civil rights laws the city is violating were passed by the federal government, but the constitution doesn’t give the federal government the power to tell city governments (other than D.C) what to do. There are some things like producing currency or conducting foreign policy that are exclusively the domain of the federal government, but the tenth amendment leaves everything else to the states.

I’m crazy enough of a libertarian that I think privatizing firefighting is a good idea, and I think private employers should be able to do whatever the hell they want in their employment decisions provided they abide by contracts. As long as firefighters are paid with tax dollars though, I think it makes sense to use the standard bureaucratic civil service rules we all (except Mencius Moldbug) have cherished ever since Garfield was assassinated, with as heavy a weighting as possible in the most objective measurements (like New Haven’s written test rather than the assessment centers offered as an alternative) to serve the taxpayer’s interest by maximally exploiting the labor market without politics or other management preferences interfering. It does not make sense to allow public sector labor unions. They used to be illegal, but as the creative destruction of competitive markets have eroded organized labor’s place in the private sector they have thrived on the government’s teat. A private company can try to calculate whether it will be more profitable to wait out striking workers, replace them with scabs, or try to meet their demands at the negotiating table. The government just keeps throwing more and more money that it doesn’t have, without getting any more labor.

UPDATE: As long as I’m talking law, I should note that Nick Szabo has compiled a best-of list of his online writings. For readers who want some of my own uninformed legal perspective, Judical empathy and Judicial restraint are some more recent stabs at the law.

No, I think you are very wrong about this facet of the Ricci case, TGGP.

One huge problem I have the liberal dissenters is that they kept obtusely conflating the essential question in the case throughout the dissent; no, the Ricci firefighters were not entitled to promotions, but in fact what they were entitled to was an undisturbed and fair PROCESS! Ginsburg is not so stupid as to not be able to distinguish between this two ideas; therefore I hold that the dissent was bald, hand-waving sophistry of the first order. Of course, they justify their reasoning behind a putative history of racial discrimination in New Haven, as is usual to do for them to do when they cannot employ better arguments after they fold to scrutiny. It is just one more case to me of leftists elevating hoped-for outcomes over principles – and what of those outcomes now? They have inflamed the Republicans with passion over affirmative action defending the indefensible. They could have placed Wood on the court, and kept “soft” affirmative action through the flowery rhetoric of “compelling state interests”, but as if oft the case with them, they choose to employ hammers to remove every single nail.

What you’re discussing here is much better characterized as a flaw in the majority’s holding, stemming from the Court’s anchoring by the moderate Justice Kennedy on racial issues, that has been so for some time. Scalia was correct, they need to examine disparate impact provisions under strict scrutiny analysis, because, aside from the Fourteenth Amendment issues, there is a significant policy case to make that argues that making innumerate appellate judges powerful arbiters of the criteria employers look to use to hire their workforces is unsustainable in the long-term. I go by the name “Cato the Elder” on the Volokh Conspiracy, so you can read my longer post here for further explication of my views.

When was the last time you saw leftists undertaking a Posner-ian economic analysis of the Law anyway?

the Ricci firefighters were not entitled to promotions
I don’t think anyone argued they were, as they were only a pool of eligible candidates, none of whom had actually yet been picked.

what they were entitled to was an undisturbed and fair PROCESS
Right now the law says that a process can be unfair if it has disparate outcomes, and an employer has reduced liability for tampering with equal treatment if it is to avoid charges resulting from outcomes.

defending the indefensible
My point is that it is the law itself, not merely their legal reasoning, which is the problem.

They could have placed Wood on the court
The soon to be ex-justice Souter signed on to the dissent. Every liberal on the court did.

I agree with you on Scalia vs Kennedy. The matter is thoroughly fouled up and will certainly require revisiting in the near future. It was still appropriate for Kennedy to ignore the 14th amendment (which is not to say that he ruled it out) since Ricci won based on Title VII alone.

there is a significant policy case to make that argues that making innumerate appellate judges powerful arbiters of the criteria employers look to use to hire their workforces is unsustainable in the long-term
I agree. Judges should be limited to evaluating what the law is, and the law should be simple enough that judges can do that reliably and competently.

When was the last time you saw leftists undertaking a Posner-ian economic analysis of the Law anyway?
The law & economics field is no longer the preserve of the right. I’m personally not a fan of it anyway. Judges should not have to know any economics. It is the job of economists to determine what is efficient, it is the jobs of judges to know what is law.

“What you’re discussing here is much better characterized as a flaw in the majority’s holding, stemming from the Court’s anchoring by the moderate Justice Kennedy on racial issues, that has been so for some time.”

I don’t think so. Assuming we accept “incorporation doctrine” and all the SCOTUS cases based on it, then government discrimination at any level is unconstitutional. You can’t pin this one on Kennedy.

The court didn’t even get into constitutional issues. Ricci won on the basis of Title VII, which was amended in the 90s to explicitly say that employers had limited liability for violating equal treatment in order to avoid liability for unequal outcomes. The court ruled that strong evidence of liability for the latter charge was necessary to avoid liability for the former and that there was not strong evidence in this case.

“The civil rights laws the city is violating were passed by the federal government, but the constitution doesn’t give the federal government the power to tell city governments (other than D.C) what to do.”

So, what’s your take on the 14th Amendment? Do you think it’s illegal, or that it’s been madly misinterpreted?

I’ve heard arguments that it was improperly ratified, but the same is true of the constitution.

After the 14th amendment was ratified, senator James Blaine tried to add the so-called Blaine amendment, which would apply some language of the 1st amendment to the state governments. It could be that he was so stupid he didn’t know that the 14th amendment already did that job, and that all the judges before the incorporation doctrine decades later were stupid as well but I do not find it probable. People had gotten tired of the Supreme Court screwing things up (hence the 11th amendment, which was promptly ignored) so starting with the civil war amendments Congress began including text that specified that it was Congress’ duty to pass enforcement acts. They did in fact pass such enforcement acts during reconstruction, in order to guarantee the rights given to freedmen in said amendments. From what I understand, there were still many racist laws on the books in many northern states and these were not deemed unconstitutional (Brown vs Board took place in Kansas, for instance).